A.Nallasamy v. The Deputy Superintendent Of

IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED : 24.02.2016

CORAM

THE HONOURABLE MR.JUSTICE R.SUBBIAH W.P.No.5953 of 2016 and W.M.P.Nos.5305 & 5306 of 2016 A.Nallasamy ... Petitioner Vs.

1. The Deputy Superintendent of Police, Economic Offices Wing-II, Unit, Coimbatore.

2. The Sub-Registrar, Sub-Registrar Office, Punjai Puliampatti, Erode District.

... Respondents Writ Petition filed under Article 226 of the Constitution of India, praying for issuance of a Writ of Certiorarified Mandamus, calling for the records relating to the impugned order dated 11.05.2015 and another order made in C.R.No.19/2012/DSP/EOW/CBE, dated 28.05.2015 passed by the 1st respondent and to quash the same and consequently, to direct the 2nd respondent to entertain the documents to be presented for registration relating to the lands bearing R.S.Nos.429/1, 2, & 3 of Mooduthurai Village, Mettupalayam Taluk, Coimbatore District without insisting for No Objection from the 1st respondent.

For Petitioner : Mr.N.Manokaran For respondents : Mr.P.Sanjay Gandhi, Additional Government Pleader

ORDER

This writ petition has been filed by the petitioner praying for issuance of a Writ of Certiorarified Mandamus, to call for the records relating to the impugned communications dated 11.05.2015 and 28.05.2015, in C.R.No.19/2012/DSP/EOW/CBE, issued by the 1st respondent to the 2nd respondent and to quash the same and consequently, to

direct the 2nd respondent to entertain the documents to be presented for registration relating to the lands bearing R.S.Nos.429/1, 2, & 3 of Mooduthurai Village, Mettupalayam Taluk, Coimbatore District without insisting for No Objection from the 1st respondent.

2.The brief facts, which are necessary to dispose of the writ petition, are as follows_ 2-1.According to the petitioner, the properties measuring to an extent of 1.37 acres comprised in R.S.No.429/2 and 3, and an extent of 63 cents comprised in R.S.No.429/1 of Mududurai Village, Mettupalaym Taluk, Coimbatore District were owned by one S.Duraisamy by virtue of two Sale Deeds dated 21.06.2012, registered as Doc.Nos.4091 & 4092 of 2012 on the file of the Sub-Registrar Office, Punjai Puliamapatti. The said S.Duraisamy had appointed one P.Selvam as his Power Agent under the General Power of Attorney Deed dated 26.11.2012 (Doc.No.7915/2012) to deal with the above said properties. The said Power Agent P.Selvam had executed a Sale Deed dated 08.01.2013 (Doc.No.119/2013) jointly in the names of the petitioner and one P.

Velliangiri, for a sale consideration and handed over the physical possession of the the said properties to the petitioner. Accordingly, the petitioner became the owner of the above mentioned 1.37 acres in R.S.Nos.429/2 and 429/3 and 63 cents bearing R.S.No.429/1, along with the coowner Velliangiri. After the Sale Deed, mutation has been effected in the petitioner's name and the co-owner, and Patta No.2045 was issued in respect of R.S.Nos.429/1 to 3. 2-2.It is further stated by the petitioner that two years after the execution of the said sale deed dated 08.01.2013, the petitioner's vendor S.Duraisamy submitted an objection dated 27.01.2015 to the 2nd respondent, who in turn sent a communication in Na.Ka.No.82/2015, dated 23.02.

2015 to the 1st respondent to inform the objections, if any, for entertaining the documents for registration in respect of the subject properties. After receipt of the said communication from the 2nd respondent, the 1st respondent has proceeded to issue the impugned orders, directing the 2nd respondent not to entertain any document for registration in respect of the subject properties as the properties are to be attached under Section 8 of the TNPID Act r/w 151 of C.P.C.

2-3.On verification, the petitioner came to know that 1st respondent-Police has registered a case in Crime No.19 of 2012 under Sections 120B, 406, 420 IPC r/w Sections 4, 5 and 6 of the Prize Chits Money Circulation Scheme Banning Act, 1978 and Section 5 of the TNPID Act, 1997, against one A.S.Senthilkumar, M.Vivek and M.Nithyanandam. However, the petitioner's vendor Duraisamy was neither an accused nor any way connected with the accused in Crime No.19 of 2012.

Further, on the basis of the report submitted by the 1st respondent, the Government has issued an order in G.O.Ms.No.113, dated 16.02.2015, to attach as many as 95 properties, but, the properties purchased by the petitioner were not attached. On the basis of the impugned communications sent by the 1st respondent, now the 2nd respondent is insisting the petitioner to obtain No Objection Certificate from the 1st respondent to register the document in respect of the subject properties. According to the petitioner, the respondents have no jurisdiction to prevent the documents presented for registration in respect of the subject properties. Hence, the petitioner has come forward with the present writ petition for the relief as stated supra.

3.Heard the learned counsel appearing for the petitioner as well as the learned Additional Government Pleader appearing for the respondents and perused the materials available on record.

4.It is the submission of the learned Additional Government Pleader that based on the communications sent by the 2nd respondent, the 2nd respondent insisted the petitioner to obtain No Objection Certificate from the 1st respondent, to register the document.

5.But, it is the submission of the learned counsel appearing for the petitioner that the 1st respondent, by couching the impugned communications dated 11.05.20156 and 25.08.3015, in a camouflaged language, has indirectly attached the properties of the petitioner, which is not permissible in law.

Further, if at all the 1st respondent has any reason to believe that the properties in question belonging to the petitioner was procured from and out of the fund misappropriated from the defacto-complainant, he can take steps to send a report to the Government for initiating action under Section 3 of the Criminal Law (Amendment) Act, 1944 and therefore, the 1st respondent cannot by himself be empowered to prohibit the transaction of the property, by sending the communication to the concerned Sub-Registrar Office and thereby interfere with the petitioner's right to property. Thus, the learned counsel for the petitioner sought for quashing the impugned orders. In support of his contentions, the learned counsel for the petitioner relied upon a decision rendered by this Court in "V.

Sundaram versus The Deputy Superintendent of Police, Economic Offences & Wing, Kancheepuram District" vide order, dated 27.07.2015 in W.P.No.11221 of 2015.

6.As per Section 3 of the Criminal Law (Amendment) Act, 1944, if a person is involved in an offence under Section 406 or 420 IPC and the victim is a private person, proceedings can be invoked for attaching the properties of the offender where

it is believed that such properties have been procured from and out of the fund misappropriated by the offender. The Act provides certain procedure to effect attachment. It is only the State Government that can initiate action by approaching the District Judge of the jurisdiction where the offender ordinarily resides or carries on business. In fact, the police officer or investigating agency has no role to play in this regard. They can, at the most, submit a report to the State Government, requesting the State Government to initiate action for attaching the property of the offender under the provisions of the Act.

7. In the present case, as could be seen from the impugned communications, the 1st respondent has identified the properties of the petitioner to initiate action for attachment under the provisions of the Act. But even prior to the Government passed necessary order for attachment of the subject properties, the 1st respondent sent the communications, dated 11.05.2015 & 28.05.2015 to the 2nd respondent stating that the registation in respect of the properties of the petitioner should be allowed.

If at all the 1st respondent feels it appropriate in order to safeguard the interest of the defacto- complainant who was cheated by the accused persons and to ensure that the petitoner shall not derive benefits from the property, which he procured by means of misappropriated funds, the 1st respondent can very well take steps by sending a report to the State Government seeking to intiate action under Section 3 of the Act for attaching the property. Therefore, as rightly contended by the learned counsel appearing for the petitioner, the 1st respondent cannot arrogate to himself the power to issue such a veiled threat to the Sub-Registrar/2nd respondent and thereby prohibit the transaction in respect of the property. In this regard, it is worthwhile to refer the decision of this Court rendered in very similar circumstances, in "V.

Sundaram versus The Deputy Superintendent of Police, Economic Offences & Wing, Kancheepuram District" vide order, dated 27.07.2015 in W.P.No.11221 of 2015, wherein, after following the decisions of the Full Bench of Bombay High Court and the Kerala High Court, it has been held as under in para 12 and 13: "12. This Court is in complete agreement with the law laid down by the Full Bench of the Bombay High Court and the Kerala High Court with regard to the power of the police office to seize immovable properties under Section 102 Cr.P.C. The Deputy Superintendent of Police, by couching the impugned communication in a camouflaged language, is in fact, indirectly attaching the properties of the accused via the backdoor, which is not permissible.

the Deputy Superintendent of Police is desirous of safeguarding the interest of the depositors, he should have immediately taken steps to send a report to the Government for initiating action under Section 3 of the Criminal Law Amendment Ordinance and not through such a subterfuge.

"13. The order impugned is indeed arbitrary exercise of power and is therefore, violative of Article 14 of the Constitution of India. It is always open to the Investigating Officer to call for the information from the Sub Registrar about the property holdings of an accused.

He can also ask the Sub Register to inform him, if any transaction concerning the properties of the accused is registered. He cannot prohibit the Registrar from registering a document."

8. In view of the above discussion, I am of the view that the impugned communications of the 2nd respondent are liable to be quashed. Further, if a document is presented for registration in compliance with the provisions under the Registration Act, the Sub-Registrar cannot deny the registration of the same unless there is interim order from the competent Court restraining him from registering the document and he is empowered to deny the registration of the document within the frame of provisions of the Registration Act and Rules framed thereunder, particularly, on the grounds enunciated under Rule 55, viz., if the document is forged, impersonation by the parties, if the executing party is a minor or a lunatice, etc. Therefore, in the absence of any interim order from the competent Court nor any of the grounds available under Rule 55, the Sub Registrar cannot deny the registration.

The Writ Petition is allowed as prayed for. The impugned communications of the 1st respondent are hereby set aside. Consequently, connected Miscellaneous Petitions are closed. No costs.

Sd/- Assistant Registrar(CS III) //True Copy// Sub Assistant Registrar [ssv]

To

1. The Deputy Superintendent of Police, Economic Offices Wing-II, Unit, Coimbatore.

2. The Sub-Registrar, Sub-Registrar Office, Punjai Puliampatti, Erode District.

+1cc to Mr.N.Manokaran, Advocate, S.R.No.12844 W.P.No.5953 of 2016 and W.M.P.Nos.5305 & 5306 of 2016 PPA(CO) CA(12/04/2016)